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This is not the rule of law

You may have seen a headline (I forget where I saw that one) that Michigan just legalized homosexual "marriage." It's a lie.

No, dear reader, Michigan did nothing of the sort. A federal judge, District Judge Bernard Friedman, said that Michigan's voter-passed constitutional amendment stating that the state must recognize only one-man-one-woman pairings as marriage is unconstitutional. That's what some news agency chose to call Michigan's legalizing homosexual "marriage." (By the way, that constitutional amendment must have been another one of those evil effects of democracy...)

Now, I have very little to say about this federal abomination except that I'm glad that it appears that our state executive branch, unlike some others, is actually going to appeal the ruling. So obviously this is all going up to SCOTUS where its ultimate fate will depend on the state of Anthony Kennedy's and perhaps John Roberts's digestion during the relevant time period. But good for Attorney General Bill Schuette for fighting it.

In the meanwhile, however, I do have one thing to point out: The state's county clerks were briefly thrown into uncertainty because Friedman refused to stay his order pending appeal. That little oversight (yeah, right) was rectified late Saturday by the 6th Circuit Court. But of course it wasn't an oversight. It doesn't take a rocket scientist to see that Friedman wanted to make a window in which the more liberal county clerks could declare they were "following the law" by opening their doors on a Saturday to issue "marriage" licenses to homosexual couples. This creates facts on the ground, and those couples can then be used as news story fodder later, with their "marriages" referred to as actually existing entities that are (sniff, sniff) thrown into question by the cruel action of the Attorney General in appealing the decision.

And the stay is, for some reason, only good until Wednesday, and who knows what happens on Wednesday. Meanwhile, about four counties did indeed issue marriage licenses on Saturday. I'm guessing that they would not normally have been open on Saturday and were run by excited lefties who opened shop specially for the purposes. But they could claim they were "following the law" in doing so, even though no court order had been issued to them to issue marriage licenses. Because, you know, whatever thoughts a federal court happens to utter are "the law," and everyone must scurry to "follow" the spirit and the letter thereof.

Other counties, like Kent County, were more cautious. They simply didn't open their doors on Saturday, and now there is the stay to give them some direction for a few days.

This is not the rule of law. This is the rule of arbitrary diktat.

For decades conservatives who advocate a state's ignoring a federal court ruling have been told that their position is dangerous because such a position would cause a constitutional crisis. Well, let me point out: For a day or so here in Michigan, we had a constitutional crisis, and we may not be done with them. The law on the books said that homosexual couples are not recognized as married. But some judge gave his opinion that such an exclusion is unconstitutional. The executive branch of the state was still not recognizing homosexual "marriage" and was appealing the decision. The judge refused to stay any effect of his opinion. So the people who actually issue the marriage licenses had to lawyer up (that's what the Kent County clerk did) to find out what they were or weren't supposed to do. And then, oh relief, a higher set of oligarchs set the matter at rest for a few more days by issuing a temporary stay. Tune in for the next exciting installment in this drama.

"Obeying" court rulings in the name of the "rule of law" apparently means that the people at the grassroots level have to make stuff up. They are expected to use their creativity to rewrite their own job descriptions in line with what was apparently the desire and intent of the robed master who just told us his opinion that our state law is unconstitutional. That's real sweet if you happen to like his opinion, but it isn't the rule of law. Not even remotely. It's chaos.

So we might as well be hung for a sheep as for a lamb. I suggest that, whatever happens, counties (at least) refuse to issue such marriage licenses. Nobody gets arrested by the state unless there is some kind of protest involving trespassing or other crimes. Some of the clerks just don't issue the licenses. What are the feds going to do? Arrest them? I suppose at that point they could start issuing actual court orders to specific county clerks. So far they haven't bothered. And then send someone (federal marshals?) to arrest them for contempt of court if they refuse.

Yes, I know it's a fantasy. But let's not pretend: Let's not tell ourselves that what's going on now, where we scramble to figure out how best to kow-tow to a court's whims, is the rule of law.

On a related note: I had friends for dinner recently and one asked me, sadly, "Who is 'the brave'?" He was talking about our national anthem and the phrase "the home of the brave." I said, "Ken Miller is the brave" and told him the story. Perhaps an unlikely hero, but a real hero nonetheless. And by the way: Miller's friends have a fund-raiser going for his legal expenses. Feel free to head on over and contribute.

Comments (17)

Just a stupid question to the crowd: where in the Constitution does it discuss marriage? The problem is that the original signers of the Constitution were, technically, of a divided nature as to what marriage was: a contract or a sacrament. Since the Constitution does not define marriage, where does this judge get off saying that a perfectly validly passed amendment defining marriage to a state Constitution was unconstitutional? For civil reasons, marriage has a contractual aspect to it that may be regulated by states, but the actual definition of marriage is a philosophical/theological issue, not a legal issue. I assume that the Michigan state Constitution also did not, originally, define marriage, either, but they, certainly, have a right to ratify the correct definition (which might be impossible given that it is a metaphysical question) or at least define the contractual aspects.

This, to me, is a confusion of theology and law. Most judges are neither philosophers nor theologians and should realize that definitional questions are, for the most part, outside of their purview. People have a right to determine, to some extent, how they wished to be ruled. Judges may point to a contradiction with existing laws, but unless something is more or less defined within the law, I fail to see how they can do anything.

I think this judge acted unconstitutionally, since I don't see where he is given the power to resolve something that is not disputed nor beyond common sense. Let's see, this judge has overruled Common Sense, Mother Nature, God, the People, and the Constitution. Can he not be threatened with impeachment?

Laws can be written to do some pretty stupid things. When someone points this out, they are called ignorant. Sometimes, the law gets it right. Then, apparently, a judge can call the law-makers ignorant.

14th amendment jurisprudence in this country has been turned into a license to judges to do anything they want. The concept of "suspect classes" is a jurisprudential mess. Essentially, the 14th amendment's statements that states cannot take anyone's life, liberty, or property without due process of law and that the states must not deny to anyone the equal protection of the laws are now used to mean, "If I, the judge, think that a law passed by a state reflects badly on some group that I, the judge, think should not be treated in any way differently from some other group, then I will declare that this is a violation of equal protection and due process and strike down the law passed by the state."

While I admit that the 14th amendment was not the clearest amendment in the world and that its passage should have been questioned on prudential grounds, this use of it is just judges making stuff up and ruling us as they please.

I forgot about that 14th Amendment, but the flaw is that heterosexual and homosexual marriages do not enjoy equal protection because they are not of the same class of things. The definition of marriage amendment makes that clear. The judge put the cart before the horse. You cannot strike down a definition that defines the nature of a law without asserting a contrary definition - and he has no power to make that definition against the will of the people. He can't define something as unconstitutional without understanding the nature if the law. An amendment clarifying a law is a meta-law and does not belong, itself, to the Constitution, so I fail to see how he has the right to rule against it.

He doesn't have any right, but the combo. of the wild world of 14th amendment jurisprudence and the fiction that "the constitution means whatever the court says it means" has been a toxic brew--a sort of potion that turns judges into power-hungry monsters. Absolute power corrupts absolutely. Lord Acton was right all along.

Lydia, one way we can know that the 14th Amendment isn't the main problem is that as recently as 1919, nobody thought the Equal Protection clause guaranteed women the right to vote (else, why bother passing the 19th Amendment?).

I have thought of that exact point _so_ many times, Sage. It makes it obvious, doesn't it? At some point the judges went wild with their protected class applications, substantive due process, and all the rest.

Would you be willing to abolish judicial review? I don't think it's possible to prevent judges from making policy decisions if you allow them to resolve ambiguous legal issues and "interpret" vague legal clauses. Judicial tyranny is the natural result of judicial review, and that is why it was always a bad idea.

I endorse some form of checks and balances to judicial review. Tony has made one proposal along those lines concerning a 2/3 majority of Congress invalidating judicial rulings (IIRC). Others could be made. One would just be that governors and other members of the executive branch would ignore obviously absurd judicial decisions. The judges don't have their private armies. One would still engage in judicial review for purposes of getting an allegedly expert opinion, and most of the time the executive branch would treat that allegedly expert opinion as binding, just to keep things rolling smoothly, but they wouldn't believe themselves always obliged to do so where the court was doing the equivalent of declaring Mickey Mouse President on the basis of the commerce clause. If I recall correctly, one of the Federalist papers said something to the effect that the court has no power but only judgement, so my proposal would seem to be right in the spirit of that.

If there is any reason to have judicial review it is to prevent severe abuses from being heaped on persecuted minorities, but a 2/3 congressional vote wouldn't really do that. Given that getting to 2/3 of Congress is also very difficult it wouldn't limit partisan decision making either, the liberals would protect liberal decisions and the conservatives would protect conservative decisions. It would be like the amendment process, a largely irrelevant tool that doesn't get used do to political difficulties. As for your other proposal, if you allow people to ignore decisions they find absurd you might as well eliminate the court and have the president seek legal advice. It amounts to the same thing. The idea that presidents will follow the court when they are not obligated to do so is as silly as the belief that the filibuster is used to stop debate from being cut off before it is finished.

The idea that presidents will follow the court when they are not obligated to do so is as silly as the belief that the filibuster is used to stop debate from being cut off before it is finished.

Really? In what sense are they obligated to right now? Yet many presidents and governors have done exactly that, again and again and again. Too often, in my opinion. So your statement that this is silly has been shown to be false ambulando, by history itself.

The president is obligated to obey the Supreme Court by law, and I assumed you were proposing that we create a system in which he has the legal authority to ignore them. If your point is that sometimes people ignore the law, I agree. That does not seem to be a good argument for judicial review since it amounts to saying that the president will violate the law when the justices go too far, but obviously they can make policy decisions without doing something so extreme that the president has the political ability to ignore them and ignore the law.

Pray tell me what statutory law obligates the President to "obey the Supreme Court," and what exactly does it mean for the President to obey the Supreme Court, anyway? For example: Is the President obligated to provide guns to arrest people or to free people from arrest in line with what he thinks the Supreme Court would want him to do? If the Supreme Court says a state law is unconstitutional, how does the President "obey" this? If the Supreme Court says, for example, that a state law against abortion is unconstitutional, is Presidential "obedience" supposed to consist in sending Federal Marshals to have a shootout (if necessary) to free an abortionist arrested in Oklahoma? The same, mutatis mutandis, to arrest a state county clerk who defies a court order (if one is issued) to issue a marriage license to a homosexual couple? What law obligates the President to do this? I know of nowhere that any such thing is written. It is _assumed_ to be an obligation imposed by the _existence_ of any system of judicial review, but that is actually a fairly big assumption.

You see, I actually refuse to acquiesce in calling court opinions "laws" or to say that anyone is "violating the law" who does not try to make stuff up in order to act in accordance with a court opinion. A President who refuses to send marshals to do the things I just outlined is not "breaking the law" or "ignoring the law," simply because he is not following the spirit of a judicial opinion regarding state law or doing what he assumes the judges "would want."

The Supreme Court is considered the top legal authority in the United States, and its decisions are seen as legally binding. If you don't accept that then I have no desire to debate with you because you have no idea what you are talking about.

"Is the President obligated to provide guns to arrest people or to free people from arrest in line with what he thinks the Supreme Court would want him to do?"

He is obligated to obey Supreme Court decisions, but in the absence of one he isn't obligated to consider the personal views of the justices.

" the Supreme Court says a state law is unconstitutional, how does the President "obey" this? If the Supreme Court says, for example, that a state law against abortion is unconstitutional, is Presidential "obedience" supposed to consist in sending Federal Marshals to have a shootout (if necessary) to free an abortionist arrested in Oklahoma? "

I don't think the president is obligated to enforce the decisions of the Supreme Court when dealing with the states, that's sort of a different issue, but fundamentally this would be no different from using the national guard to protect the Little Rock 9. I'd say it is definitely legally acceptable to force states that ignore the Supreme Court to obey the law if we limit our discussion to things he president could do. What is he obligated to do is different. Your problem here is that you think the court has to the power to provide legal remedies to all parties that come before it, which is clearly false. The president isn't legally required to offer a remedy to those that come before the court unless his administration is directly impacted by the case in question.

And I'm the one who has no idea what I'm talking about? You treat "obligated to obey the Supreme Court's decisions" like some sort of self-interpreting phrase, yet you then go on to say that the President isn't obligated to enforce the decisions of the Supreme Court when dealing with the states. Yet you don't even seem to realize that this is all that it _could_ mean for the President to "obey" Supreme Court decisions when they are directed at the states which, as you may notice, is what this post was about.

The Supreme Court is considered the top legal authority in the United States, and its decisions are seen as legally binding. If you don't accept that then I have no desire to debate with you because you have no idea what you are talking about.

Dunsany, for your historical enlightenment, this is a legal theory about the Constitution, it is not actually IN the Constitution. And it is a legal theory that was rather heatedly disputed.

Another theory is that the very meaning of the separation of powers where the Supreme Court has no powers of execution is that if the Supreme Court decides X, and the president decides he cannot in conscience treat X as being according to the Constitution, then the president doesn't pursue X. The framers didn't WANT the Supreme Court's decisions to be so without restraint that the supreme executive just followed their orders without applying his own judgment of the meaning of the Constitution - that it takes a degree of consensus between them to actually effect policy X.

There is nothing in the Constitution that definitively dispels the second theory in favor or the first.

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Some points:

1. There is no privilege of homosexual marriage, since the term marriage is vague. Once the term is defined (by a consensus of the people of the state),then the privilege becomes clarified. Once clarified, privileges accrue. Since the people have clarified what marriage is (that was the whole purpose of the amendment), the judge can only define privileges based on that definition, not his own. He cannot, in fact, rightly criticize their definition, since the definition is to clarify the law proposed in the state. The privileges flow from the definition. One cannot reverse the idea and have the definition flow from supposed privileges that the judge would like to have.

2. Equal protection implies equal membership in the set of legal entities entitled to the protection, but homosexual and heterosexual marriage are not in the same set of legal entities, since they have different teleologies. They, simply are two different things, no matter how much homosexual marriage advocates want to argue otherwise. Heterosexual and homosexual marriages do not have the same final causes, to use Aristotelian/Thomistic language, so they cannot belong in the same set except for a few accidental attributes. Two fundamentally different things cannot be treated as being equal, so they cannot be accorded the protection of equals.

I say, again, the judge is illogical. He is granting privileges of something that is ill-defined and putting things in classifications where they do not belong.

Finally, no one has to obey the judge. Dunsany, because Divine Laws and Natural Laws supersede mere positive laws. Since both Divine and Natural Laws have already condemned homosexual unions, no matter what the Supreme Court says, to the extent that what they say disagrees with the two upper hierarchies of laws, it must be disobeyed, otherwise, one is guilty of the sin of indiscreet obedience. We have forgotten in this country that there is a hierarchy of laws and the Supreme Court is NOT at the top.

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